“Baretta,” The Ethics of Criminal Justice, And Keeping The Sentence From The Jury

Just stay in the box, everybody...

Just stay in the box, everybody…

Florida criminal defense lawyer has made a thorough and passionate argument on his blog for letting a jury know what the sentence is likely to be if it convicts the defendant in a criminal trial. He writes in part:

Florida juries are not permitted to know the most basic truth of a case—the potential sentence. Kind of crazy, right? Citizens are not allowed to know the sentence that will result from their verdict out of fear that such information would sway the jury’s conscience toward not guilty (God forbid a jury with a conscience!). Such fears say a lot about how harsh our criminal justice system has become.

Knowledge is power. A fully informed citizenry, typically, provides insurance against the tyranny of outrageous government legislation. Juries should know that a $300 purchase of oxycodone pills can lead to a 25 year minimum mandatory sentence. Yes, as little as $300. No, juries don’t know this, even when they’re the ones about to impose the 25 year sentence. Sadly, a minimum mandatory prison sentence for a $300 drug deal is common place in Florida. Most citizens mistakenly believe that 25 years of mandatory prison are reserved for the likes of a Pablo Escobar (any Narcos fans out there? Great Netflix series, I recommend it). Even child molesters fair better, on average, than folks who possess minimum mandatory drug amounts. Child rapists average around 17 years in prison. Naturally, prosecutors want to keep jurors in the dark about mandatory sentences on drug offenses, as it is far easier to obtain guilty verdicts when the jury doesn’t realize just how devastating these minimum prison terms turn out to be for defendants and their family.

We’re often told that ignorance of the law is no excuse. Try telling the judge that you just didn’t know what the speed limit was, and see if that provides you any sort of defense. Sympathy, maybe. A defense, no. We citizens are all charged with knowledge of the criminal laws and their penalties—we’re just not allowed to mention such things in a courtroom!

Well, he’s an advocate; that what trial lawyers are supposed to be good at. Naturally, his example is a drug sentence. I agree: that sentence for purchasing oxycodone pills is ridiculous. However, anyone breaking the law by doing that has accepted the risk of that sentence. The Seventies TV show “Baretta” (starring probable murderer Robert Blake) had a theme song that went “Don’t do the crime if you can’t do the time.” That’s still true. A criminal should know the law he is presuming to break. He deserves no sympathy if he gambles and loses. If he doesn’t break the law, then the sentence, however harsh, is irrelevant.

The sentence disparity needs to be fixed with the oxycodone crime and many others, and it’s the legislature’s job to fix it. That’s not what juries are for: they haven’t been elected; they have no special expertise. Most jurors couldn’t even make sense out of most statutes as written. Similarly, it is appropriate for the potential sentence to be left out of the fact-finding aspect of a criminal trial because it is irrelevant to the jury’s function, which is only determining guilt on the facts. Whether the law is fair is irrelevant. How many kids the defendant has, what good deeds the accused might have done, how much he is loved, that he is kind to dogs, that he was a war hero—all irrelevant. The questions for the jury are “Did he do it?” and “Was it proven beyond a reasonable doubt?”

Naturally defense attorneys would love the jury to also decide whether a conviction would be “fair” — thus Guidry’s post. He’s really talking about jury nullification, which I wrote about recently here. A jury that makes its decisions based on emotion and extraneous information unrelated to the crime itself is a bad jury, and bad juries, like dumb juries, ignorant juries, and bigoted juries are easier for lawyers to manipulate. The system is based on the assumption that typical, untrained citizens can weigh evidence, use common sense, and in a group, determine guilt….and that’s all. There is considerable evidence that they aren’t even very good at that; Guidry wants them to legislate and be judge too.

Nice try.

He does raise an interesting point about Florida, though:

Technically, Florida now has a law on the books that requires a judge to inform the jury of the penalty involved.  Florida Statute 918.10(1) provides that “At the conclusion of argument of counsel, the court shall charge the jury.  The charge shall be only on the law of the case and must include the penalty for the offense for which the accused is being charged”.   Unfortunately, Section 918.10 has fallen out of favor, and now conflicts with the Florida Rules of Criminal Procedure, Rule 3.390(a).  Rule 3.390 states that “Except in capital cases, the judge shall not instruct the jury on the sentence that may be imposed for the offense for which the accused is on trial”.

The Rule is correct.

The law is wrong.


Pointer: Fred.

17 thoughts on ““Baretta,” The Ethics of Criminal Justice, And Keeping The Sentence From The Jury

  1. So, on balance, your thought is that jury nullification is only a proportionate act of civil disobedience when the law is being used to intrude upon bona fide rights, rather than used to excessively punish legitimate criminal activity?

    • I’d prefer to say that it should be available to be used in extraordinary circumstances only as, yes, civil disobedience of a sort—it isn’t really, because there’s no penalty for it, so it can easily be abused—which is what defense lawyers want.

      • I go back to what you originally said. Determining whether or not the penalty is appropriate is NOT the juries job. Their ONLY function is to determine guilt or innocence. I guess some states require them to fix punishment as well, but certainly not all, and that is the only time I can think of when knowing the possible sentence is appropriate.

        • The attorney’s blog post is pretty sneaky: the system hides the law from the jury, he says. No it doesn’t. It’s just not relevant to the jury’s job, and potentially an impediment.

  2. This issue is more complicated that it appears. The Federal District Court accused the state of California’s judges and justices of creating an epidemic of misconduct, especially among prosecutors. It is common place for prosecutors to fabricate evidence and conceal exculpatory evidence.

    I had one judge advise me that “this is criminal court and we don’t fight so hard for our clients here.” I usually do civil cases, but the judges on the civil bench are as corrupt as the ones on the criminal bench.

    Jury nullification should occur much more frequently than it does. Jurors hold the ultimate authority in our system, and jury nullification is a vital tool. Jurors are not robots to be mis-programmed with misinformation in order to convict people or to send people to prison for absurd periods of time. In fact, I go as far as saying that we need to develop jury instructions on Jury Nullification so that jurors have a better idea when it should be applied and when it should be withheld.

    We have struggled this problem for centuries which is why the ecclesiastical courts developed in England so that today our system is a mish-mash of “at law” and “equity.” Right now, we need to increase the amount of equity in order to counterbalance the epidemic of corruption.

    • I don’t see prosecutorial misconduct as relevant at all to this issue. What are you suggesting? Juries should just always acquit? Misconduct occurs too often—once is too often—but it is far from the norm. Most criminal cases are very clear cut.

  3. Does a good attorney try to find out during voie dire that a potential juror is liable to imagine what the sentence would be? It seems to me that the concept can go both ways. A juror might vote guilty, even if the defendant is innocent, if he/she thought that the punishment would be harsh because he/she is a jerk and/or a sociopath. Determining sentence might not be the job of the jury, but I could imagine them wondering in the absence of that information.

    • We do not have one lone juror making the decision.

      We have judges who are psychopaths, we have attorneys who are psychopaths, we have defendants who are psychopaths. Of course, there will be some psychopaths on a jury. That’s why we have 12 jurors.

      • But in a criminal trial, the decision of the jury must be unanimous. 1 obstinate juror can result in a mistrial, and retrial.

  4. I would also mention that in most states a sentence of 25 years doesn’t mean serving 25 years; many folks serve only about 25% of their sentences and even violent criminals are often paroled after serving 1/3 to 1/2 of their sentences. Only really bad actors who continue to be bad actors behind bars usually serve anywhere near their full time.

  5. But why is the jury reminded of the potential penalty in Capital crimes if not to reassert the seriousness of the jury’s duty? If that is the case, then surely it can be analogized to lesser crimes?

      • Jurors are told about the punishment in capital cases for two reasons:

        1. In all capital cases, potential jurors are told that the defendant faces the death penalty. They are questioned carefully during voir dire to identify those who are categorically opposed to the imposition of capital punishment, as well as those who believe that death should always be imposed as the punishment . All of these jurors are disqualified from serving in death penalty cases, because they refuse to follow the law.

        2. In most jurisdictions, jurors are responsible for deciding whether the death penalty should be imposed. Capital trials in those jurisdictions are bifurcated into two proceedings: A “guilt phase” followed by a “penalty phase.” If the jury returns a guilty verdict, it must then hear evidence and argument on the appropriate penalty – life or death.

        • Yup,thanks. Can’t voir dire on the death penalty and not tell them the death penalty is on the table. Duh. That was a stupid, careless comment on my part. I was narrowly focusing on the guilt or innocence question, and missed the forest for the tree.

        • 1) Then surely it makes sense to inform juries in lesser crimes as well, if they are potentially unqualified due to politically obstinant disagreements or politically obstinate agreement with the associated penalties… No?

  6. While the Jury is supposed to be the trier of facts, not determinants of the law – I feel that in order to determine whether someone is guilty or innocent of a crime, they need to know what the text of the law the accused is being charged with says.

    That includes all of the law, including mandatory and recommended penalties set by the legislation. I trust neither judge, prosecution nor defence to have perfect knowledge of the law. Their role is advisory, as experts whose views should be accorded extreme deference, but not viewed as absolutely infallible.

    Possibly it’s no bad thing that I’ve never been called to jury service.

    • Considering the way you are oriented to being a juror, I think that it is unfortunate that you have not been a juror. Your approach is the type of mind set which we need on juries.

      What we do not need are people who are unduly impressed by authority and who do what they think the authorities want them to do. Rather, we need people willing to grapple with the complexity of the totality of the situation.

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